There’s been a lot of discussion of the Baby Emma case, spurred by a recent decision of the Utah Supreme Court. It’s gratifying to have such lively discussion going on, but it can also be confusing to have so many topics at issue at once. I wanted to use this post to separate out a discussion of the choices Utah has made with regard to its adoption law.
One thing this does is take us away from the facts of the specific case involving Baby Emma. That’s one set of facts, but if you were sitting in the legislature in Utah, thinking about what the law should be, you’d probably also consider other possible scenarios. And you’d think more broadly in terms of general policies–facilitating the adoption of children is one, protecting the rights of biologically related parents is another. You might have to think about which one was more important and why, and then maybe you’d figure out what sort of legal structure would strike the right balance between whatever things you decided to consider.
I realize that is all quite abstract, but that is often the way one thinks about law when you are contemplating legislation. It’s not like a judge deciding a specific case. You are making general rules that will cover many circumstances.
With all that in mind, I wanted to consider the choice the Utah legislature made. I think we can all agree that they’ve made it very hard for a man who is not married to the woman who gives birth to a child to object to the adoption of that child even where he is genetically related to the child. He has to do exactly the right things and he has to do them in very little time. Thus, it will often be the case that the adoption will be completed without his consent and over his objections.
In the comments in the last post you’ll find many statements about what is bad about this–mostly that it is unfair to biologically related unmarried men. There’s some (though I think it is a little less spelled out) about how it is also bad for children–because it denies them the opportunity to be raised by the men who participated in their conception.
I want to take the time to articulate the competing arguments that might be offered to justify Utah’s law. I don’t mean to suggest that I necessarily accept them. (Indeed, to the extent they rest on an assumption that married parents are better, I reject the assumption.) But whether you accept them or not, you should be able to at least state the arguments. Really, you can only refute them after you’ve understood them.
Suppose Utah assumes that children do best in two-parent married families. This is not an unusual assumption–you run into it in a lot of contexts. It comes up where states bar unmarried couples from adopting and in discussions of single parents. (Indeed, I’m fairly confident that if you looked back on the discussions here about single parents you’d find some people arguing that kids do better in two parent married families.)
Now if you accept the idea that children do best in two-parent married families, you might see two ways that the Utah policy helps ensure that the most children possible end up in just that sort of family. First (and pretty obviously), more kids end up being adopted by married parents rather than remaining with the single dads. Second, one way that men worried about the harsh treatment of single fathers can avoid that treatment is by marrying the child’s mother. Once they are married, Utah law will present no problem.
There’s another potential argument in favor of Utah’s scheme–one I think is kind of interesting. Consider the position of the single mother. She may care for the child but she may not want to raise the child. Thus, she’s willing to place the child with a qualified adoptive family. But she may think that the idea of the single father raising the child alone is a bad one–at least some of the time, single mothers will have concluded that the men they were with when they got pregnant are not good parent material. If he’s got the right to veto an adoption and plans to do so, she may feel that she has to retain and exercise her own parental rights, too. So she ends up parenting when she doesn’t really want to and the child ends up with two parents who won’t have the best chance of getting along. You could think this was bad and, depending on how common you think the situation will be, you could decide to shape law in a way that avoids the problem.
I think it is worth considering and discussing these rationales. I’ll repeat once more–it isn’t that I think they must be winning arguments, but they are arguments to consider.